Babylonian Talmud: Tractate Sanhedrin

Folio 29a

BY 'FRIEND' ONE'S GROOMSMAN IS MEANT. How long [is he regarded as such]? — R. Abba said in R. Jeremiah's name in Rab's name: The whole seven days of the [marriage] feast.⁵  The Rabbis said on Raba's authority: After the very first day [he is no longer regarded as such].

BY 'ENEMY', ANY MAN etc. Our Rabbis taught; And he was not an enemy;⁶  then he may give evidence. Again, neither sought his harm;⁷  then he may be his judge.⁸  Here we find [the exclusion of] an enemy. Whence is deduced [the exclusion of] a friend? — Read [these texts] thus: And he was not his enemy, nor his friend, — then he may give evidence, neither sought his harm, nor his good, — then he may be his judge. Is then 'his friend' actually stated?⁹  — But it is a matter of logic. Why is an enemy [excluded]? Because of his disaffection.¹⁰  Then a friend too [is ineligible] because of his friendly inclination.¹¹  Now, how do the Rabbis¹²  interpret this text, And he was not his enemy, neither sought his harm?¹³  — One [expression] intimates [his unfitness to be] a judge;¹⁴  the other they interpret as has been taught: R. Jose son of R. Judah said, And he was not his enemy, neither sought his harm; from this we deduce that two scholars who hate each other may not sit together as judges.

MISHNAH. HOW ARE THE WITNESSES EXAMINED? — THEY ARE BROUGHT INTO A ROOM,¹⁵  AND AWE IS INSTILLED INTO THEM.¹⁶  THEN THEY ARE SENT OUT,¹⁷  SAVE FOR THE OLDEST [WITNESS] TO WHOM THEY [THE JUDGES] SAY, TELL US, HOW DOST THOU KNOW THAT SO AND SO OWES [MONEY] TO SO AND SO? IF HE ANSWERS: HE PERSONALLY TOLD ME: 'I OWE HIM [THE MONEY],' OR, 'SO AND SO TOLD ME THAT HE OWES HIM,' HIS STATEMENT IS WORTHLESS,¹⁸  UNLESS HE DECLARES, 'IN OUR PRESENCE,¹⁹  HE ADMITTED TO HIM THAT HE OWES HIM TWO HUNDRED ZUZ.'²⁰  AFTER THAT THE SECOND WITNESS IS ADMITTED AND SIMILARLY EXAMINED. IF THEIR STATEMENTS TALLY, THEY [THE JUDGES] PROCEED TO DISCUSS THE CASE. SHOULD TWO FIND HIM NOT LIABLE AND ONE LIABLE, HE IS DECLARED NOT LIABLE; TWO LIABLE, AND ONE NOT LIABLE, HE IS DECLARED LIABLE; ONE LIABLE, AND ONE NOT LIABLE, OR TWO EITHER NOT LIABLE OR LIABLE, WHILE THE THIRD IS UNDECIDED,²¹  THE NUMBER OF JUDGES IS INCREASED.

WHEN THE VERDICT IS ARRIVED AT,²² THEY²³  ARE READMITTED, AND THE SENIOR JUDGE SAYS: SO AND SO, THOU ART NOT LIABLE; OR, SO AND SO, THOU ART LIABLE.

AND WHENCE DO WE KNOW THAT HE [ONE OF THE JUDGES] WHEN LEAVING, MUST NOT SAY, 'I WAS FOR ACQUITTAL WHILST MY COLLEAGUES WERE FOR CONVICTION, BUT WHAT COULD I DO, SEEING THAT THEY WERE IN THE MAJORITY?' — OF SUCH A ONE IS IT WRITTEN: THOU SHALT NOT GO ABOUT AS A TALEBEARER AMONG THY PEOPLE,²⁴  AND AGAIN, HE THAT GOETH ABOUT AS A TALEBEARER REVEALETH SECRETS.²⁵

GEMARA. How are they²⁶  cautioned? Rab Judah said: We admonish them thus: As vapours and wind without rain, so is he that boasteth himself of a false gift.²⁷  Raba remarked: They might say [inwardly]: Though a famine last seven years it does not pass the artisan's gate.²⁸  But, said Raba, this is what is said to them: As a maul and a sword and a sharp arrow, so is a man that beareth false witness against his neighbour.²⁹  R. Ashi demurred: They might say: Though a plague last seven years, no one dies before his time! But, said R. Ashi, Nathan b. Mar Zutra told me, We warn them thus: False witnesses are despised [even] by their own employers, as it is written, And set two men, base fellows, before him, and let them bear witness against him, saying, Thou didst curse God and the King.³⁰

IF HE ANSWERS, HE [PERSONALLY] TOLD ME: I OWE HIM [THE MONEY];' OR, 'SO AND SO TOLD ME THAT HE OWES HIM,' HIS STATEMENT IS WORTHLESS, UNLESS HE DECLARES, 'IN OUR PRESENCE HE ADMITTED THAT HE OWES HIM TWO HUNDRED ZUZ. This³¹  supports Rab Judah. For Rab Judah said in Rab's name: One must definitely instruct them [those who witness a transaction]: Ye are my witnesses.³²  It has been stated, likewise: R. Hiyya b. Abba said in R. Johanan's name. [If A says to B,] 'You owe me a maneh',³³  and B admits it; and if he demands it from him the following day, and B answers, 'I was only jesting with you,'³⁴  he is not liable.³⁵  So also it has been taught: [If A says to B,] 'You owe me a maneh'; and B answers, 'Yes, it is so;' but on the following day, when the former demands it, the latter replies. 'I was but jesting with you,' he is not liable. Moreover, if he hid witnesses behind a fence and said to him: 'You owe me a maneh', and B answered, 'Yes;' and A added, 'Are you willing to make this admission in the presence of so and so?' And he replied: 'I am afraid to do so, lest you compel me to go to court;' and if on the following day, on his [A's] demanding it from him, B retorts; 'I was only jesting with you', he is not liable. But we do not plead [thus] on behalf of a Mesith.³⁶  Mesith? Who mentioned him?³⁷  — The text is defective, and should read thus: If he himself did not plead [this],³⁸  we do not plead it for him. But in capital charges, even if he himself does not plead,³⁹  we plead on his behalf. Yet no such plea is made on behalf of a Mesith. Wherein does a Mesith differ? — R. Hama b. Hanina said: I heard it said in a lecture⁴⁰  by R. Hiyya b. Abba: A Mesith is different, because the Divine Law states, Neither shall thine eyes pity him; neither shalt thou conceal him.⁴¹

R. Samuel b. Nahman said in R. Jonathan's name: Whence do we know that we do not plead on behalf of a Mesith? — From the [story of] the ancient serpent.⁴²  For R. Simlai said: The serpent had many pleas to put forward but did not do so. Then why did not the Holy One, blessed be He, plead on its behalf? — Because it offered none itself. What could it have said [to justify itself?] — 'When the words of the teacher and those of the pupil [are contradictory], whose words should be hearkened to; surely the teacher's!'⁴³

Hezekiah said: Whence do we know that he who adds [to the word of God] subtracts [from it]? — From the verse, God hath said, Ye shall not eat of it neither shall ye touch it.⁴⁴

R. Mesharshia said: [We derive it] from the following verse: Ammathayim [two cubits] and a half shall be his length.⁴⁵  R. Ashi said: From this: 'Ashte-'esreh [eleven] curtains.⁴⁶

Abaye said: The above ruling⁴⁷  holds good only if he says: 'I was only joking with you'; but if he pleads:

1. Owing to the death of their sister, the wife of Mar 'Ukba.
2. Palestine.
3. [Do you mean that my ties with you are indissoluble, and that this accounts for my refusal to act as your judge? (Yad Ramah.)]
4. [Presuming too much on my relationship with you (Yad Ramah).] And not for the reason that I was unaware that the halachah does not rest with R. Judah.
5. Cf. Rashi on Gen. XXIX, 27, Yalkut, LXX, on Judges XIV.
6. Num. XXXV, 23. This verse is understood to refer to the witnesses in a case of murder, not to the accused. As regards the murderer it is written, That the man slayer that slayeth his neighbour and hated him not in the past may flee thither. Deut. IV, 42.
7. Num. XXXV, 23.
8. Because immediately after this it is written, And the Congregation shall judge.
9. Surely it is inadmissible to deduce a law by adding to the text!
10. Lit., 'alienation of his mind.'
11. Lit., 'the proximity of his mind.'
12. In the Mishnah who do not disqualify a man on such grounds.
13. Ibid.
14. In which case they agree with R. Judah
15. Most edd. omit 'a room'.
16. Lit., 'Frightened,' — to tell the truth.
17. That is the reading of Alfasi and Asheri. (also J.). and seems to be supported by the discussion in the Gemara (v. infra, p. 185., n 5). But our text reads: THEN ALL THE PEOPLE ARE …
18. Lit., 'He has said nothing.'
19. I.e., in the presence of himself and another person.
20. I.e., intending, by so doing, to recognise us officially as witnesses.
21. Lit., 'Says, I do not know.'
22. Lit., 'when the matter is finished.'
23. The Talmud discusses to whom 'THEY' refers.
24. Lev. XIX, 16. In other versions this verse is omitted. Cf. J. and Maim. Yad, Sanh. XXII.
25. Prov. XI, 13.
26. The witnesses.
27. Prov. XXV, 14. I.e., just as abundant and seasonable rain is promised as a reward for faithfully keeping the commandments, so the iniquity of the people is the cause of the withholding of the rain, cf. Ta'an. 7b Thus the witnesses are warned that, by their false evidence, they may cause drought.
28. I.e., the warning may prove ineffective, for hunger need not be feared by those who have learned a trade.
29. Prov. XXV, 18, i.e., their misdemeanor might cause a plague to come upon the world.
30. I Kings XXI, 10. regarding Naboth. The contention is proved from the fact that the witnesses are called base fellows by Jezebel, their own employer.
31. The fact that they must declare, IN OUR PRESENCE, which implies that he explicitly appointed them for the purpose.
32. Otherwise their testimony cannot be accepted.
33. A hundred zuz.
34. Because I knew you asked a thing which never happened.
35. Alfasi and Asheri omit the bracketed passage, and substitute: And he must instruct (them), 'Ye are my witnesses.'
36. [H], an inciter to idolatry; v. Glos.
37. I.e., it has no bearing on the discussion.
38. That he was only jesting with him.
39. Circumstances that would help to prove his innocence.
40. [H], the lecture held on the Sabbath before Festivals, Rashi, B.B. 22a. V. Zunz, GV 349, n.g.]
41. Deut. XIII, 9; this refers to a Mesith.
42. In the Garden of Eden. Cf. Gen. III.
43. So Eve, evens though seduced by me, should have obeyed the command of God.
44. Gen. III, 3. Eve added to God's words by telling the serpent that she was not even permitted to touch the tree. The serpent then pushed her into contact with the tree and told her: See, just as death did not ensue from the touch, so it will not follow from eating of it. V. Rashi a.l.
45. Ex. XXV, 17. If [H] be decapitated it will read [H] ([H]) two hundred. Thus by adding the [H] the number will be reduced to two.
46. Ex. XXVI, 7. By taking away the [H] from [H] [11], it reads [H] [12].
47. That where witnesses were not present by special appointment he might plead that he was joking.

Sanhedrin 29b

A man once hid witnesses against his neighbour behind the curtains of his bed, and said to him: 'You owe me a maneh'. 'Yes', he replied. 'May all present, whether awake or asleep be witnesses against you? he asked⁴  'No', was the reply. R. Kahanah [before whom the trial was brought] observed; Surely he answered, No!⁵

A man hid witnesses against his neighbour in a grave, and then said to him: 'you owe me a maneh. 'Yes' he answered. 'Shall the living and the dead be witnesses against you?' 'No', he retorted. Said R. Simeon [b. Lakish]: Surely he answered, No!⁶

Rabina, or some say R. Papa, said: We may infer from the above, that the dictum of Rab Judah in Rab's name, viz., One must definitely instruct them: 'You are my witnesses,' holds good no matter whether the debtor says it, or the creditor says it while the debtor remains silent. For it⁷  is only because the debtor said, 'no'.⁸  but had he kept silent, it would indeed have been so.⁹

A certain man was nicknamed, 'A kab-ful of indebtedness.' [On hearing the name,] he exclaimed: 'To whom do I owe anything but to so and so and so and so?' Thereupon they summoned him before R. Nahman. Said he: A man is wont to disclaim abundance [of wealth].¹⁰

A certain man was nicknamed, 'The mouse lying on the denarii.'¹¹  Before he died, he declared: 'I owe money to so and so and to so and so.' After his death they summoned his heirs before R. Ishmael son of R. Jose. Said he to them:¹²  The dictum, 'A man is wont to disclaim abundance [of wealth],' holds good only in life, but not in death.¹³  They paid half, and were summoned for the other half, before R. Hiyya. Said he to them: Just as one is wont to disclaim his own abundance [of wealth], so he is likely to disclaim it for his children.¹⁴  Thereupon they [the plaintiffs] asked: 'Shall we return [the half we have already received]?' R. Hiyya replied: The Zaken¹⁵  has already given his ruling.¹⁶

If a man admitted [a claim] in the presence of two witnesses, and they confirmed this by Kinyan,¹⁷  they may indite [a note],¹⁸  if not, they may not do so.¹⁹  [If he admitted] it in the presence of three, and they made no Kinyan: Rab [Ammi]²⁰  said, They may write a note;²¹  R. Assi ruled, They may not. There was a case once where Rab took into consideration R. Assi's ruling.

R. Adda b. Ahabah said: Sometimes a deed of acknowledgment²²  may be drawn up; sometimes it may not. If they [the witnesses] merely happened to be assembled [when he made the admission,] it may not be drawn up; but if he [the debtor] called them together, it is to be drawn up. Raba said: Even then it may not be indited, unless he definitely told them, 'Be you my judges.'²³  Mar son of R. Ashi said: Even then, it may not be drawn up, unless the [necessary] meeting place is fixed and he [the debtor] is summoned to appear before the court.²⁴

If a man admitted a claim of movable property, and they [the witnesses] secured a formal title from him, they may record it; but not otherwise. But what if it concerned real estate, and they secured no formal title? — Amemar said: They may not record it. Mar Zutra said: They may. The law is that a deed is to be drawn up.²⁵

Rabina once happened to be at Damharia,²⁶  and R. Dimi son of R. Huna of that town asked him: What of movable property which is still intact [i.e., in the possession of the debtor]? — He answered: It ranks as real estate.²⁷  R. Ashi, however, ruled: Since it still needs collection, it is not so.

A certain deed of [debt] acknowledgment did not contain the phrase: 'He said unto us, Write it, attest it and give it to him [the creditor].'²⁸  Abaye and Raba both said: This case comes under the ruling of Resh Lakish, who said: We may take it for granted that witnesses will not sign a document unless he [the vendor] has attained his majority.²⁹  R. Papi — others say, R. Huna the son of R. Joshua — objected: Can there be anything which we [the judges] do not know, and yet the clerks of the court know?³⁰  But in fact when the clerks of Abaye's court were questioned, they were found to know this law, and similarly the clerks of Raba's court.³¹

A certain deed of acknowledgment contained the phrase; 'A memorial of judicial proceedings,'³²

1. That he never admitted liability, notwithstanding that there are witnesses who testify to the contrary.
2. So that not even an oath can free him.
3. I.e., what one says in jest is not remembered. His total denial therefore does not weaken his case.
4. Probably the plaintiff knew that the defendant would refuse to admit the debt in the presence of witnesses, but he thought that he might assent if he believed that all were asleep. (Rashi.)
5. And so refused to admit his debt in the presence of witnesses. Hence he is not liable.
6. Therefore he acquitted him.
7. The ruling in the above-mentioned cases, where the debtor is acquitted.
8. When requested to authorise those present to be witnesses.
9. I.e., his admission in liability in the first place would be valid
10. Therefore he probably spoke of non-existent debts so as to disclaim wealth. Consequently he is not liable.
11. I.e., a miser. [Mice often drag away into their holes glittering object such as coins, rings, etc. V. Lewysohn, Zoologie, p. 106.]
12. The heirs.
13. Hence the claim against the heirs is established.
14. So that his declaration before death might have been fictitious.
15. The elder R. Ishmael, son of R. Jose. v. supra p. 137, n. 1.
16. So that I cannot reverse the decision with regard to the amount already paid.
17. V. p. 142, n. 2.
18. Of the debt, even if not explicitly instructed by the debtor.
19. Unless directly requested, for though the debtor expressly appointed them as witnesses, he may prefer an oral debt to a written bond, since the former can be collected only out of property in his possession, but not out of real estate sold subsequent to the incurring of the debt, whereas the latter can be so collected.
20. Some versions correctly omit the name in brackets.
21. Since in this case they are given the authority of a Beth din to convert an oral debt into a written one.
22. [H], Of debt, made before three witnesses and without Kinyan.
23. I.e., he conferred upon them the powers of a court.
24. I.e., this improvised court must observe the usual formalities of a court, sitting in a place previously determined, and summoning the debtor.
25. In the case of immovable property, as soon as the admission is made, the debt is considered as collected; consequently there is no reason why the debtor should prefer an oral debt to a written one; which latter, however, might well be preferred in the case of movable property.
26. [A town in the neighbourhood of Sura, v. Obermeyer, op. cit. p. 298.]
27. The law of which is stated above.
28. The question is whether the omission is proof that the contract was written without the debtor's request or not.
29. I.e., the age of twenty, v. B.B. 156a; the sale of a legacy before that is invalid, and it is taken for granted that witnesses are aware of this law. So also in this case, where the admission was made before two witnesses, and without Kinyan, the latter would know that they could not write a deed without the debtor's instructions; hence they must have been so instructed.
30. This law, that two witnesses must not record the admission without explicit instructions, is not even known to all judges. How then can it be assumed that they must have known it?
31. It was therefore shewn that this rule was known to clerks of the court, charged with the drafting of legal documents, and before whom they were generally attested.
32. Lit., 'A memorial of the words of so and so,' instead of, 'A memorial of testimony by witnesses.'